Fiol

*1322 Opinion

Plaintiff and appellant Giovanni Fiol appeals from a judgment of dismissal after defendant and respondent Jon Doellstedt’s motion for judgment on the pleadings was granted without leave to amend in this sexual harassment action. In the published portion of this opinion we conclude a nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA), as either an aider and abettor of the harasser or the employer, or as an agent of the employer. In the unpublished portion of the opinion, we discuss the dismissal of Fiol’s common law causes of action. We affirm.

Facts and Procedural Background

Fiol began to work for Activision, Inc. on January 5, 1994. Fid’s immediate supervisor was Sean Silva, whose immediate supervisor was Doellstedt. Silva routinely engaged in sexual jokes and innuendoes at Fid’s expense. Silva grabbed Fid’s buttocks and crotch, rubbed his pelvic area against Fid’s back, kissed Fiol, forced Fiol’s face into his crotch and demanded oral copulation. Silva told Fiol that in order to advance in Activision, Fiol would have to submit to his…

I respectfully dissent from the majority opinion insofar as it holds defendant, Jon Doellstedt, is not subject to potential civil liability under the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) 1 A supervisor with knowledge of ongoing sexual harassment occurring in the workplace, or of a complaint of such misconduct, who fails to take any investigative or corrective action is subject to potential civil liability under the FEHA. That an individual can be personally liable for violations of the FEHA is evident from: the policy underlying and the purposes of the FEHA; the language of the statute; its legislative history; regulations promulgated under the FEHA; construction of the act by the Fair Employment and Housing Commission (commission); the Legislature’s acceptance of the commission’s construction; and decisional authority. A supervisor is an “agent” of the employer and is therefore an employer for purposes of the FEHA. (§§ 12940, subd. (h)(3)(A), 12926, subd. (d).) An employer has a mandatory duty under the FEHA to “take all reasonable steps to prevent harassment from occurring,” including “immediate and appropriate corrective action.” (§ 12940, subd.…

[Opinion certified for partial publication. [*] ]

OPINION

GRIGNON, J.

Plaintiff and appellant Giovanni Fiol appeals from a judgment of dismissal after defendant and respondent Jon Doellstedt's motion for judgment on the pleadings was granted without leave to amend in this sexual harassment action. In the published portion of this opinion we conclude a nonharassing supervisor, who fails to take action to prevent sexual harassment, is not personally liable for sexual harassment under the Fair Employment and Housing Act (FEHA), as either an aider and abettor of the harasser or the employer, or as an agent of the employer. In the unpublished portion of the opinion, we discuss the dismissal of Fiol's common law causes of action. We affirm.

Fiol began to work for Activision, Inc. on January 5, 1994. Fiol's immediate supervisor was Sean Silva, whose immediate supervisor was Doellstedt. Silva routinely engaged in sexual jokes and innuendoes at Fiol's expense. Silva grabbed Fiol's buttocks and crotch, rubbed his pelvic area against Fiol's back, kissed Fiol, forced Fiol's face into his crotch and demanded oral copulation. Silva told Fiol that in order to advance in Activision, Fiol…